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The LexBlog Network (LXBN) featured this blog on December 23, 2015: Although Internet access is essential to all businesses and individuals in the US (and around the world), apparently the F.C.C. (Federal Communications Commission) continues to struggle with getting Net Neutrality legally correct. Most people don’t even realize what’s going on with the Net Neutrality controversy which has been in and out courts over the past of the past decade , but what’s at stake will impact us all.

I liked the simple explanation of what Net Neutrality is from the New York Times on the eve of the December 4, 2015 hearing before the DC Circuit Court of Appeals:

It’s a lousy name for the idea that traffic for all legal content on the Internet should be treated equally. In practice, that principle has taken shape in F.C.C. regulations that bar Internet service providers from blocking certain websites or making them download slower or faster than others.

An example of a net neutrality violation would be if Comcast decided to intentionally make streams of Netflix videos buffer while allowing its own streaming service to play seamlessly to its millions of home broadband customers. Another would be if AT&T blocked Facebook Messenger for its wireless customers.

At that December 4th hearing the plaintiffs challenged the F.C.C.’s authority to regulate and control the Internet by classifying broadband Internet as a Title II service which is the same bucket which the F.C.C. regulates telephone services (Communications Act of 1934). The F.C.C. actually took this action after the same DC Circuit Court’s 2014 vacated the then current Net Neutrality rules.

Also the New York Times reported that Judge David Tatel, who wrote the opinion when the case was last before the DC Circuit Court of Appeals in 2014:

…pointed several times to case history that supports the F.C.C.’s move to regulate broadband services like utilities. He said an opinion by the Supreme Court in 2005 gave the F.C.C. the ability to categorize communications services as it sees fit.

Explaining the argument the New York Times also made these observations:

Telecom and cable firms argue that broadband services are not the same as telephone services and should not be strapped with the same utility-style framework of heavy regulations. They say the F.C.C. illegally put broadband into the same bucket as phone services so the net neutrality rules should be overturned. The agency has argued that it had to reclassify broadband as a utility-like service after the court vacated rules last time and told the agency it was making rules on shaky legal ground.

Google is Pro and Con!

Here’s a great irony, in 2013 Wired reported that Google is on both sides of Net Neutrality –as an ISP and as a provider of fiber. A Kansas City potential customer filed a claim with the F.C.C. that Google would not permit that potential customer to run a server on the Google fiber which Google defended. So as a fiber provider Google wants limits that are the opposite of what they demand as an ISP.

Watch Out for a Political Change

Only to make things more complicated Net Neutrality is also a very political issue since the F.C.C. has five Commissioners, of whom the Chair is appointed by the US President and whatever party the President hold a majority of three of the five Commissioners’ posts. So if a Republican is elected President in 2016 then the control of the F.C.C. would shift and it is entirely possible Net Neutrality would morph into something different.

Also for all we know Congress may decide that they know better and revise the F.C.C.’s power and take control over Net Neutrality.

To make a long story short, Net Neutrality may not be resolved by the DC Circuit’s upcoming ruling and remain a complicated legal issue for years to come.

Related topic hubs

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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